How a Foreign Company Apply for Certificate of Origin in Vietnam?

Vietnam has growing fast due to the opening policy of the government, and has been signing a number of free trade agreements with ASEAN, China, Korea, Japan, India, Australia, New Zealand, Chile, Russia, Belarus… with effectiveness. The expecting Europe Vietnam Free Trade Agreement has been signed but not yet effective at this moment. Having said that, Vietnam has become a destination for foreign investors to set up company and factory in Vietnam to undertake manufacturing for export and enjoy tax preference because of Vietnam origin.

The applicant wishing to be granted the Certificate of Origin (“C/O”) needs to register the trader profile under Vietnam regulations before submitting the dossier applying for C/O. There are steps to be followed at the State authorities to check the trader profile, its legal registration in Vietnam, manufacturing facilities that produce the goods which are subject of C/O. Further, additional information and proof will be required for verification at Vietnam State Authorities including the declaration of origin provided by manufacturer or supplier of originating materials or locally produced originating goods if such material is used in subsequent stage to produce another good, good manufacturing process. Not only checking the documents, the authority could undertake an inspection visit to the manufacturing facility of trader and request the applicant to submit evidence of customs declaration of materials imported and used in production of exported goods (if imported materials are used in the production process); a sale contract or VAT invoice of locally purchased materials (if locally purchased materials are used in the production process) and other documents as deemed necessary. If the documents, the process, and the conditions are met, the C/O will be issued.

In general, an originating good is a good which is originating in a country, group of countries, or territory where the last processing operation is performed and substantially transforms such good. To qualify for non-preferential goods, there will be required of:

1.“Change in tariff classification” (hereinafter referred to as CTC): means a change in two-digit, four-digit, or six-digit HS heading of a good as compared with the HS heading of non-originating materials (including imported materials and materials of undetermined origin) used for the production of such good.

2.“Local value content” (hereinafter referred to as LVC)

The applicant for C/O shall choose either direct formula or indirect formula at their own discretion to calculate LVC and apply the chosen formula throughout such financial year. The verification and identification of LVC criteria for exported goods of Vietnam shall be based on the aforesaid formula.

In order to calculate LVC according to the formula, value of materials and cost incurred in the production process of goods shall be determined as follows:

a) “Value of materials originating in a country, group of countries, or territory of production” is inclusive of CIF value of materials acquired or locally produced that are originating in a country, group of countries, or territory; direct labor cost, overhead cost, other costs and profits.

b) “Value of materials originating in a country, group of countries, or territory of production” is CIF value of materials imported that are originating in a country, group of countries, or territory; or the earliest ascertained price stated in the VAT invoices associated with materials of unidentifiable origin used for the production, processing of ultimate product.

c) “FOB” is the value stated in the export contract which is calculated as follows: “FOB = Ex-workshop price + other costs”.

– “Ex-workshop price” = Production cost + profit;

– “Production cost” = material cost + direct labor cost + overhead cost;

– “Material cost” covers expenses associated with purchase of materials, their cost of freight and insurance;

– “Direct labor cost” covers wages, bonuses and other welfare amounts related to the production process;

– “Overhead cost” covers: Overhead cost relates to production process (insurance for buildings, factory rents and hire-purchase cost, depreciation of buildings, repairs, taxes, collateral interests); hire-purchase cost and interests of factories and equipment; factory security; insurance (for factories and equipments used in the production process); expenses for essentials for production process (energy, electricity and other essentials to be used directly in the production process); research, development, design and workmanship; pressing molds, moulds, devices and amortization, maintenance and repairs of factories and equipment; patent royalties (in respect of patented machines or use of patented machines in production process or goods production licenses); testing of materials and goods; storage in factories; waste treatment; cost factors in calculating value of materials, such as port-related cost, good clearance and import duties on taxable components;

– “Other costs” are the costs incurred in placing the good in the ship or other means of transport for export including, but not limited to, domestic transport costs, storage and warehousing, port handling, brokerage fees, service charges and relevant costs incurred when loading goods onboard ships for export.

If the goods that do not qualify to be issued C/O in Vietnam, it can not be granted C/O. Any violations of laws will be punished by the government.

It appears that many manufacturers are in the process to relocate significant manufacturing process to Vietnam to enjoy “Made-in-Vietnam”.

In the meantime, alarmingly, there are equal number of other manufactures whom wish to only transfer a small portion of manufacturing process to Vietnam i.e re-packaging, re-labeling which does not meed to qualifications above.

It is important that Vietnam authorities to alert and constantly monitor the C/O application process to ensure all responsible departments, officers to follow the rule as set by law to evaluate the C/O application documents, and proof given by trader, manufacturer carefully.

By doing that, Vietnam government will encourage the “real” transition of manufacturing from China to Vietnam, therefore increasing FDI, boosting the economy through encouraging manufacturing sectors.

By urging customs authority to investigate and punish violators, the Vietnam government is sending strong message to US that Vietnam is not standing to support unfair trade, and in the meantime take advantage of the situation to attract quality manufacturing projects into Vietnam. Therefore, more crackdowns are expected.

ANT Lawyers, as a law firm in international trade has been actively providing legal services through advisory to manufacturers on the C/O matters and assisting a number of investor to set up manufacturing company, review leasing contract at industrial zone as part of the process to transition manufacturing into Vietnam to seriously invest and do business taking advantage of origin, labour, opening policy of Vietnam government.

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Korean Investors Research to Invest in Solar Power Projects in Quang Tri Province

IL Yang Industrial Company (Korea) is planning to invest in Vietnam, conducting research, study, proceed to set up company building solar power plant in Quang Tri province, Vietnam.

On December 22nd, IL Yang Industrial Company (Korea) had a meeting with Quang Tri People’s Committee to discuss their investment in solar power project in Quang Tri province. Previously IL Yang Industrial Company had a field trip in Hai Lang and Vinh Linh district, Quang Tri province.

According to IL Yang Industrial Company, through surveys, the Company found that Quang Tri is a potential province to develop solar power. Therefore, in the coming time, the Company will continue to work with the province and other sectors to better understand the indicators to study, proceed to invest in building solar power plant in Hai Lang district with the capacity of 500MW and Vinh Linh district with the capacity of 200MW.

At the meeting, IL Yan Industrial Company expressed their wish to exchange relevant information as well as support and create favorable conditions from Quang Tri province’s leaders to study the project.

According to the People’s Committee of Quang Tri province, Quang Tri province is currently planning to attract investment projects in the field of industry, with priority in the areas of competitive advantage and environmentally friendly industries. In fact, there have been some solar power projects in the area.

The proposed investment in solar power plants in Hai Lang and Vinh Linh of IL Yang Company with advanced technology is suitable with the planning policy of locality. Since then, Quang Tri province is ready to cooperate, create conditions for the company to complete procedures and apply the maximum support policies of the province.

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Assistance to Set-up Business in Vietnam

Foreign investors could make direct investment in Vietnam through setting up one hundred per cent (100%) capital of foreign investors, or establishing joint venture between domestic and foreign investors, or investing in the contractual forms of: BCC, BO, BTO, and BT.

Types of enterprise for foreign investors to invest in Vietnam are as following:

a) Set-up Limited Liability Company in Vietnam

Limited Liability Company is a form of enterprise which is established by contributing of members. A member shall be liable for the debts and other property obligations of the enterprise within the amount of capital that it has undertaken to contribute to the enterprise.

Limited liability companies are regulated by two types:

– One member Limited Liability Company is an enterprise owned by one organization or individual;

– Limited Liability Company with two or more members is an enterprise owned by organizations or individuals, in which the number of members shall not less than two members and not exceed fifty.

Organizational and management structure of Limited Liability Company normally comprise of a Member’s Council, General Director or Director.

b) Set-up Joint Stock Company in Vietnam

Joint Stock Company is an enterprise which has charter capital divided into equal portions called shares. The minimum number of shareholders shall be three and there shall be no restriction on the maximum number.

Shareholders shall be liable for the debts and other property obligations of the enterprise only within the amount of capital contributed to the enterprise.

Joint Stock Companies may issue all types of securities to raise funds. Founding shareholders must together register to subscribe at least twenty per cent (20%) of the number of ordinary shares which may be offered for sale.

The main difference between Joint Stock Company and Limited Liability Company is the Joint Stock Company can raise funds by offering shares or securities. In addition, an enterprise tends to join the Stock exchanges or public company must be a Joint Stock Company. Management system of Joint Stock Company is more complicated than Liability Company.

c) Set-up Partnership in Vietnam

A partnership is an enterprise which must be at least two members being co-owners of the company jointly conducting business under one common name. In addition to unlimited liability partners, there may be limited liability partners.

Unlimited liability partners must be individuals who shall be liable for the obligations of the company to the extent of all of their assets. Limited liability partners shall only be liable for the debts of the company to the extent of the amount of capital they have contributed to the company.

d) Set-up Representative Office of Foreign Trader in Vietnam

A foreign business entity or a foreign trader is allowed to establish Representative Office in Vietnam.

Representative office of a foreign business entity in Vietnam (referred as “Representative Office”) means a subsidiary unit of the foreign business entity, established in accordance with the law of Vietnam in order to survey markets and to undertake a number of commercial enhancement activities permitted by the law of Vietnam.

Representative Office will need to apply and obtain the establishment license; and have a seal bearing the name of the representative office.

Representative Office is not allowed to directly conduct profit making activities in Vietnam (i.e: the execution of contracts, direct payment or receipt of funds, sale or purchase of goods, or provision of services), but the representative Office is permitted to

-To operate strictly in accordance with the purposes, scope and duration stated in the license for establishment of such representative office;

-To rent offices and to lease or purchase the equipment and facilities necessary for the operation of the Representative Office;

-To recruit Vietnamese and foreign employees to work for the Representative Office in accordance with the law of Vietnam;

-To open accounts in foreign currency and in Vietnamese Dong sourced from foreign currency at banks which are licensed to operate in Vietnam, and to use such accounts solely for the operation of the Representative Office.

e) Set-up Branch of Foreign Trader in Vietnam

The Branch of a foreign business entity in Vietnam (referred as “The Branch”) means a subsidiary unit of the foreign business entity, established in accordance with the law of Vietnam in order to enter into contracts in Vietnam and conduct activities being the purchase and sale of goods and other commercial activities consistent with its license for establishment in accordance with the law of Vietnam and any international treaty to which the Socialist Republic of Vietnam is a member.

The Branch will need to apply and obtain the establishment license; and have a seal bearing the name of the Branch.

The Branch is permitted to conduct activities being the purchase and sale of goods and other commercial activities consistent with its license for establishment in accordance with the law of Vietnam and any international treaty to which the Socialist Republic of Vietnam is a member.

f) Investment by Signing Contracts in Vietnam

Business co-operation contract (BCC) means the investment form signed between investors in order to co-operate in business and to share profits or products without creating a legal entity.

Build-operate-transfer contract (BOT) means the investment form signed by a competent State body and an investor in order to construct and operate commercially an infrastructure facility for a fixed duration; and, upon expiry of the duration, the investor shall, without compensation, transfer such facility to the State of Vietnam.

Build-transfer-operate contract (BTO) means the investment form signed by a competent State body and an investor in order to construct an infrastructure facility; and, upon completion of construction, the investor shall transfer the facility to the State of Vietnam and the Government shall grant the investor the right to operate commercially such facility for a fixed duration in order to recover the invested capital and gain profits.

Build-transfer contract (BT) means the investment form signed by a competent State body and an investor in order to construct an infrastructure facility; and, upon completion of construction, the investor shall transfer the facility to the State of Vietnam and the Government shall create conditions for the investor to implement another project in order to recover the invested capital and gain profits or to make a payment to the investor in accordance with an agreement in the BT contract.

Foreign investors may sign BOT, BT and BTO contracts with a competent State body to implement infrastructure construction projects in Vietnam. Typically, the contracts are for projects in the fields of transportation, electricity production, water supply, drainage and waste treatment.

The rights and obligations of the foreign investor will be regulated by the signed BOT, BT and BTO contract. The Government encourages both public- and private-sector investors to participate in BOT, BTO and BT in the following sectors:

(i) Construction, operation and management of brand-new infrastructure facilities; and

(ii) Renovation, expansion, modernization, operation and management of the existing infrastructure facilities such as:

• Roads, bridges, tunnels, and ferry landings;

• Railway bridges and railway tunnels;

• Airports, seaports and river ports;

• Clean water supply systems; sewage systems;

• Wastewater, waste collecting and handling systems;

• Power plants and power transmission lines;

• Infrastructure works of health service, education, training, career training, culture, sport and offices of State agencies; and

• Other projects as may be determined by the Prime Minister

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Vietnam – Singapore Industrial Park Company Limited (VSIP) Surveyed Investment in Quang Tri

Chairman of Quang Tri Provincial People’s Committee, Mr Nguyen Duc Chinh just had a meeting with the delegation of Vietnam – Singapore Industrial Park Limited Company (VSIP) led by Mr Anthony Tan, Deputy General Director of VSIP, representing VSIP (Singapore) – Amata (Thailand) – Sumitomo (Japan) as the leader.

On this occasion, Mr Anthony Tan, Deputy General Director of VSIP informed the leaders of Quang Tri province about the project of developing industrial parks and urban areas in VSIP at Quang Tri. According to representative of VSIP, currently the joint venture of investors VSIP – Sumitomo – Amata has selected contractors to survey the terrain and geology of the regions and soon have results to report to the Provincial People’s Committee.

On behalf of the provincial leaders, Chairman of Quang Tri Provincial People’s Committee thanked the delegation of VSIP – Sumitomo – Amata Joint Venture investors for visiting Quang Tri province. At the same time, in 2019, Quang Tri province will celebrate the 30th anniversary of the re-establishment of the province. Therefore, the provincial leaders have directed the branches and authorities to make efforts to work together with investors to start or inaugurate projects to celebrate this important event.

Regarding the investment plan for the infrastructure development project of industrial parks and urban areas in Quang Tri, Chairman of Quang Tri provincial People’s Committee wishes that the join venture of VSIP (Singapore) – Amata (Thailand) – Sumitomo (Japan Version) makes more efforts to start the project as soon as possible.

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Danang cooperates with South Korea in building an intelligent transportation system

On October 28th, Vice Chairman of Danang People’s Committee had a meeting with Seoul Metro delegation, represented by Mr. Shim Seung Moo – Director of Seoul Metro International Relations Department.

At the meeting, the parties discuss about the program “Building Intelligent Traffic System” (ITS) in Danang, including the main contents such as: basic survey of the area where the project is supported; Reviewing and evaluating Danang plans and policies, development regimes; Analyze the appropriateness of the time as well as the project content and budget ….

Mr. Shim Seung Moo – Director of Seoul Metro’s International Relations Department said: Using the ITS application to operate and manage the transportation system is a necessary job for Vietnam and Danang. If ITS is implemented in an integrated manner, traffic congestion during peak hours as well as traffic accident incidents in the area will be quickly resolved.

In the coming time, to deploy the ITS project, Seoul Metro will support Danang in installing infrastructure, equipment, violation monitoring systems (speeding, illegal parking), system of moving fee, parking management … It is expected that the project will be implemented according the plan during 3 years: The first year of construction of architectural frames, the second year of organizing training and installation, the third year of operation.

On behalf of the representative of Danang city, Vice Chairman of the City People’s Committee-Mr. Dang Viet Dung, agreed and highly appreciated the proposals of the Seoul Metro mission in surveying and supporting Danang to build the ITS system. Especially in the context that Danang aims to build a smart city in the period of 2018-2025, with a vision to 2030.

South Korea is known as a country with IT industries in the world, including the electronics, telecommunications and transportation. Therefore, the application of information technology applications in parking, solving traffic congestion, traffic flow,… will be necessary conditions towards building a smart city in Danan in the future.

The Vice President assigned the Department of Transport and the Department of Planning and Investment to early develop a detailed plan of the project to submit to KOICA and competent agencies in Vietnam for consideration, and to build a roadmap to receive it. KOICA’s non-refundable capital. Besides, the Vice Chairman expected the relevant units to coordinate to implement the project effectively.

With the goal of building a smart city in 2030, Danang wants to attract more investors from many different countries, to make investments in the field of information technology in Danang, to achieve the goals to be the smart city set by the city in the future.

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Establishing Distribution Company In Danang

Da Nang is a city in the Central of Vietnam, with the advantage of being a trading place of many countries in the world. Danang has a large seaport in the top 10 large seaports of Vietnam, facilitating trading activities with many countries around the world.

At the present, Da Nang is promoting foreign investment into Da Nang, and many investors have chosen Da Nang to do business in the distribution business line. For this business line, Vietnam has committed to open up to attract 100% foreign investment. As committed, foreign-invested companies in the distribution sector will be allowed to provide commission agents, wholesalers and retailers of all products manufactured in Vietnam and legally imported products into Vietnam. Therefore, the investors can import or produce goods, then they distribute the goods in accordance with regulations.

In addition, with the increasing in the number of tourists coming to Da Nang in recent years, the demand for consumer products, fashion and other items for tourists has increased. This triggers demand that many companies to provide essential goods for tourists, and this is a great investment opportunity for investors both domestically and abroad. The investors could explore this opportunity to set up company in Da Nang and fill the market’s demand.

In addition, with many policies to support enterprises in administrative procedures, as well as management, investors can easily carry out procedures as well as manage and control their business better. Enterprises investing in Da Nang are now very satisfied with the way public services are handled in the city’s administrative procedures, therefore more and more investors are choosing Da Nang as a destination for investment when targeting in Vietnam.

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Why Asian Investors Prefer Vietnam Real Estate Market?

Profitability of high-end real estate in Vietnam surpasses that of ASEAN countries.

According to Mr Pham Lam, General Director of DKRA Vietnam, in the past 3 – 5 years, Asian investors from Korea, Hong Kong, Japan, Malaysia and China have been active in the Vietnam real estate market. They prefer golden land funds, specializing in high-end and luxury real estate development.

Also according to leaders of DKRA Vietnam, the investment wave of Asian investors will increase in the next few years. The expert also outlines the 7 causes of the trend that Asian investors hunting for golden land to develop high-end real estate projects.

Firstly, Vietnam is a developing real estate market. In emerging markets, there are more investment opportunities than markets that have grown too long (saturation of opportunity). Real estate in many Asian countries are too expensive and the investment at the present time is not attractive in the native country has urged Asian investors poured capital into Vietnam market.

Secondly, Vietnam is a country with political stability, which is considered as the most important factor that is of international concern before entering a new market. The stable political background brings safety for investment yields in the context of global geopolitical fluctuation is increasingly unpredictable.

Third, high-end and luxury real estate in Vietnam, especially Ho Chi Minh City (HCMC), is more profitable than ASEAN countries. According to a recent report of some surveyors in the country, high-end real estate in districts 1 and 3 of HCMC have a profitability ratio of more than 4%. In District 2, especially Thao Dien, An Phu and Thu Thiem areas, luxury apartments achieved a profitability rate of 5 – 6.5%.

Meanwhile, the profitability rate of investment in luxury apartments in ASEAN is fluctuating in the range of 3.7 to 5.2% and in Asia, it also has the same threshold. Therefore, luxury real estate in HCMC is considered quite competitive while the price is lower.

Fourth, Vietnam has Asian culture in accordance with the culture of other countries in the area. The similarity or proximity in culture is a very effective bridge in the process of investment promotion, investment cooperation, helping the Asian real estate owners easily access and penetrate the real estate market in Vietnam.

Fifth, Vietnam has a young population and is experiencing a spurt in income, so the demand for housing has increased sharply. The middle class, even the rich and the super-rich, are among the fastest growing groups in the world. This is a remarkable advantage of Vietnam.

With the flagship product of Asian investors, which is high-end real estate, they target rich consumers who are willing to pay for high-value assets with outstanding quality to assert their position.

Sixth, interest rates in the developed real estate markets in the Asia is very low. Interest rate in Japan is 1%, Singapore is 3%, Korea is below 2% and other regions such as Taiwan, Hong Kong is also at a modest level compared to Vietnam. This is the factor attracting the attention of investment funds and major real estate companies in Asia coming to Vietnam. In addition to developing projects with committed profit margin, they also carry out loan deals with better interest rates than in their hometowns.

Seventh, due to the same region, the moving distance between Vietnam and their home country of Asian investors is considered to be faster, more convenient than other continents. Close geography distance helps Asian investors have more opportunities to monitor, check the new market and make important decisions in time, making the most effective investment.

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